THE ELIMINATION OF MARITAL FAULT IN AWARDING
SPOUSAL SUPPORT: THE MINNESOTA EXPERIENCE
Larry R. Spaint
I.
II.
III.
INTRODUCTION
THE DEBATE OVER SPOUSAL SUPPORT
A. The Theoretical Basis for Awarding Support
B. Current Application ofMarital Misconduct
C. Minnesota's Approach
CONCLUSION
861
864
865
866
868
871
I. INTRODUCTION
It has now been more than thirty years since California, in the
late 1960s, launched the modern-day reform movement in divorce
l
laws by adopting the first no-fault' divorce law in the United States'
and eliminating the concept of fault in marriage dissolution
actions: The no-fault movement was premised on the idea that the
removal of fault as a basis for divorce would significantly reduce the
amount of personal animosity and bitterness typically associated
with divorce.'
t
Associate Professor of Law, Texas Tech University School of Law.
1. For a detailed account of the no-fault divorce movement in California and
nationally, see Herma Hill Kay, Equality and Difftrence: A Perspective on No-Fault
Divorce and Its Aftermath, 56 U. CIN. L. REv. 1, 7-17 (1987).
2. While the actual terminology of no-fault grounds may vary from state to
state, they share a common theoretical basis allowing for the dissolution of
marriages deemed no longer viable, regardless of the cause, rather than requiring
that dissolution, be granted only if based on the fault of one of the parties.
WALTER WADLINGTON & RAYMOND C. O'BRIEN, FAMILY LAw IN PERSPECTIVE 78-80
(2001).
3. Family Law Act, eh. 1608, §§ 1-32, 1969 CAL. STAT. 3312 (1970).
4. Allen M. Parkman, Reforming Divorce Reform, 41 SANTA CLARA L. REv. 379,
385 (2001) (urging reform of divorce law that would include mutual consent).
5. Lynn D. Wardle, No-Fault Divorce and the Divorce Conundrum, 1991 BYU L.
REv. 79, 79-80 (1991); see also Homer H. Clark,Jr., Divorce Policy and Divorce Reform,
42 U. COLO. L. REV. 403, 405 (1971) (noting the bittemess often associated with
f-ault-based divorce litigation whose explicit purpose was to allocate blame as a
861
862
WILLIAM MITCHELL LAW REVIEW
[Vol. 28:2
Following California's lead, in August, 1970, the Uniform
Marriage and Divorce Act' (UMDA) was proposed by the National
Conference of Commissioners on Uniform State Laws,
recommending that the sole ground for divorce should be a
finding of irretrievable breakdown of the malTiage.' Delays in
obtaining an endorsement of the UMDA by the American Bar
Association meant that states eager to reform their divorce laws
8
looked to the California legislation or early versions of the UMDA'
for guidance.
In 1974, the Minnesota legislature followed suit and
eliminated "fault" from its law of marital dissolution by enacting noIo
fault divorce legislation.
In 1978, Minnesota enacted a
lI
maintenance statute that required that maintenance I ' be granted
reason to tenninate a marriage and recommending more humane divorce laws).
6. UN[F. MARRIAGE & DrvORCE ACT (amended 1971 & 1973),9A D.L.A. 159
(1998).
7. For an historical account of the UMDA and its adoption in several states,
see Kay, supm note I ,at 44-55.
8. Kay, supra note 1, at 4-5.
9. Id. at 51.
10. Act of March 14, 1974, ch. 107, 1974 Minn. Laws 157. The 1974
amendments were part of the no-fault divorce act that rewrote MIhlN. STAT. §
518.06, which had previously set forth the following grounds for divorce:
(I) Adultery;
-
,
2001]
SPOUSAL SUPPORT
863
without regard to marital misconduct.
Both measures were
intended to reduce the adversarial nature of divOt'ce proceedings as
well as to diminish the bitterness and costly litigation associated
with divorce. More recent measures include the encouragement of
I
alternative dispute resolution ' and the availability of a summary
I4
dissolution process.
By June 1, 1974, after Minnesota enacted no-fault legislation,
I
there remained only five states ' where marital misconduct
provided the sole basis for granting a divorce. l' At the time,
Minnesota was one of fourteen states where irretrievable
breakdown of the malTiage provided tile only ground for divorce. l'
CUtTently, sixteen states allow a no-fault basis as tile sole ground for
divorce while an additional thirty-two states allow for the granting
of a divorce on a no-fault basis while also retaining tile traditional
IS
fault-based grounds.
The increase in and public awareness of divorce and its effects,
both economically as well as psychologically, on the parties
involved, have heightened public policy debates and calls for
legislative action to reform divorce legislation and judicial
doctrines. l9
Some commentators have argued that tile
transfOtmation from fault-based divorce to a system involving nofault has resulted in the impoverishment of women and children,
2O
both in absolute as well as relative terms. The economic issues
(2) Impotenc)';
(3) Course of conduct detrimental to the marriage relationship of the
party seeking the divorce;
(4) Sentence to imprisonment ... ;
(5) \i\Trllfui desertion for one year next preceding the commencement
of th.e action;
(6) Habitual drunkenness for one year immediately _preceding the
commencement of the action;
(7) Three years under commitment ... ;
(8) Continuous separation under decree of limited divorce for more
than five years.
MINN. STAT. § 518.06 (repealed 1974). MINN. STAT. § 518.06(1) now provides for
the dissolution of a maniage upon a finding that there has been an "in"etrievable
breakdown of the marriage relationship." MINN. STAT. § 518.06 (I) (1990).
11. Act of April 5, 1978, cll. 772, § 51,1978 Minn. Laws 1083 (effective March
1,1979) (codified at MINN. STAT. § 518.552 (1990)).
12. Alimony is now alternatively referred to as support, spousal support,
maintenance, or separate maintenance in manyjurisdictions. In Minnesota, 1978
amendments" eliminated the tenn alimony and substituted maintenance, defined
as an "award made in a dissolution or legal separation proceeding of payments
from the future income or earnings of one spouse for the support and
maintenance of the other." MINN. STAT. ANN. § 518.54(3) (West Supp. 2001).
The terms are used interchangeably throughout this article.
13. See, e.g., MINN. GEN. R. PRACTICE 310 (1996) (effectiveJul)' I, 1997); MINN.
8TAT. § 518.091 (a) (4) (West Supp. 2001).
14. MINN. STAT. § 518.195 (West Supp. 2001) (providing summary dissolution
in select cases within thirty days of the filing of a joint declaration for parties who
otherwise meet certain statutory qualifications and procedural requirements).
15. Illinois, Massachusetts, Mississippi, Pennsylvania and South Dakota.
16. Doris Jonas Freed, Grounds for DivoTce in the American jurisdictions [as of
June 1, 1974], 8 FAM. L. Q 401, 401 (1974).
17. Id. at 421 chart B.
18. Linda D. Elrod & Robert G. Spector, A Review of the Year in Family Law:
Century Ends with Unresolved Issues, 33 FAM. L.Q. 865, 911 chart 4 (2000) (noting
that Arizona and Louisiana covenant marriage statutes establish specific grounds
for divorce for covenant marriages).
19. Robert]. Levy, Trends in Legislative Regulation of Fmnil)l Law Doctrine:
MillennialMusings, 33 FAM. L. Q. 543, 550-51 (1999).
20.
LENORE]. WEITZMAN, THE DIVORCE REVOLUTION: THE UNEXPECTED SOCIAL
AND ECONOMIC CONSEQUENCES FOR WOMEN AND CHILDREN IN A.t\llERICA 358, 365
(1985); Cynthia Starnes, Divorce and the Displaced Homemaker: A Discourse on Playing
vVith Dolls, Pmtnership BU)loUts and Dissociation Under No-Fault, 60 U, CHI. L. REv. 67,
85-95 (1993).
864
WILLIAM MITCHELL LAW REVIEW
[Vol. 28:2
20011
Should considerations of fault and moral blame have
economic consequences in divorce? Or should such considerations
be eliminated due to the fact that marital misconduct is often
difficult to assess and introduces issues collateral to financial need
and ability to pay? States have had to consider whether marital
fault should be an absolute bar to the award of maintenance, as
only one factor among many to be considered or whether fault
should be tot<l1ly disregarded in making a determination of support
following marriage. Of course, the law of domestic relations
generally has been reserved to the states with little uniformity and
substantial consensus on many significant issues, i~cluding the
proper role of fault in spousal support determinations.-'
associated with divorce have directed the debate over the
consequences of no-fault divorce legislation and their impact on
the fairness and equity of financial outcomes for women when
marriages are dissolved.
The focus of this article is to examine the historical
development and current status of one particular economic issue
associated with the dissolution of a marriage: the award of spousal
support. A court is called upon to consider not only whether an
award of spousal support is appropriate but, if so, the amount and
duration of the support as well. A comparison of approach to
spousal support in Minnesota with other states should highlight the
underlying debate on these important issues of public policy.
A. The Theoretical Basis for Awarding Support
II. THE DEBATE OVER SPOUSAL SUPPORT
Spousal support has become a topic engendering considerable
debate because of the wide-ranging views of judges, lawyers,
legislators and tile public on fundamental issues underlying its
proper function as well as the basis for its award.'! As a
consequence, alimony determinations have resulted in substantial
conflict and lack of predictability of result. 22
One of the variables affecting tile outcome of alimony requests
is the degree to which fault or marital misconduct is allowed to be
considered in the actual determination.
A number of
commentators have debated the proper role of fault in dissolution
proc~edin,?"s and allocation of financial resources following the
marnage.
21. For a detailed discussion of altenlative theories underlying alimony
awards, see Ira Mark Ellman, The Theory ofAlimony, 77 CAL. L. REv. 1 (1989).
22. Robert Kirkman Collins, The Theory ofMarital Residuals: AppZ'ying an Income
Adjustm.ent Calculus to the Enigma ofAlimony, 24 HARv. WOMEN'S LJ. 23, 23 (2001).
23. See, e.g. Ira Mark Ellman, The Misguided Movement to Revive Fault Divorce,
and TVhy Reformers Should Look Insf£ad to the American Law Institute, 11 INT'L J.L.
POL'y, & FAM. 216 (1997) (discussing the introduction of fault in divorce as a
misguided attempt to regulate conduct between spouses in marriage and
suggesting that the reintroduction of fault will reduce neither the rate of divorce
nor spousal violence); Peter Nash Swisher, Reassessing Fault Factors in No-Fault
Divorce, 31 FAM. L.Q. 269, 269 (1997) (exploring how the use offault-based factors
can ultimately create better living conditions for women and make each party act
more responsibly during the marriage); Adriaen M. Morse, Jr., Fault: A Viable
Means of Re-Injecting Responsibility in Marital Relations, 30 U. RICH. L. REv. 605
(1996) (suggesting that marital fault should be an integral part of any alimony
system);]. Herbie DiFonzo, No-Fault Marital Dissolution: The Bitter Triumph ofNaked
Divorce, 31 SAN DIEGO L. REv: 519, 553-54 (1994) (examining how no fault divorce
has had a serious negative impact on women); NOlIDan B. Lichtenstein, 1I1mital
865
SPOUSAL SUPPORT
Alimony originated as a remedy in the English ecclesiastical
courts when a final dissolution of marriage was available only by
special legislative action; gender roles were fixed and not subject to
q uestion', and the principle that a husband had a legal and
established duty to support his wife was generally accepted. . The
theoretical basis for a continuing obligation of support followmg a
marriage was the idea of enforcing the husband's duty to support
his wife and as punishment for his wrongdoing."
The introduction of misconduct or marital fault in divorce
proceedings has traditionally appealed to those individuals viewing
divorce in moralistic terms. Proponents of the moralistic approach
believe that any economic losses resulting from the breakup of a
marriage should fall upon those morally respon~ible:27 Prior. to
1968 and the adoption of no-fault divon:e leglslatlon, mantal
misconduct or "fault" was almost universally accepted as a relevant
.
,
I
1
~
Misconduct and the Allocation of Financial Resources at Divorce: A Farewell to Fault, 54
UMKC L. REv. 1 (1985).
24. WADUNGTON & O'BRIEN, supra note 2, at 3-4.
.
25. For a detailed historical account of the development of alimony both. 111
England and the United States, see Robert Kirkman Col~ins, The ~heory of Man,tal
Residuals: Applying an Income Adjustment Cakulus to the Enzgma ofAlwwny, 24 HARv.
J
I
I
1•
WOMEN'sLJ. 23, 28-31 (2001).
26. HOMER H. CLARK, JR., THE
LAw OF DOMESTIC RELATIONS IN THE UNITED
420-21 (1968).
. .
27. Ira Mark Ellman & Sharon Lohr, Marriage as Contract, Opportunzstzc
Violence, and Other Bad Arguments for Fault Divorce, 67 U. ILL. L. REV. 719, 721
(1997).
STATES
~66
WILLIAM MITCHELL LAW REVIEW
[Vo!. 28:2
factor in deciding economic issues as part of a divorce."
This per~eption began to change, however, with the inception
of no-fault dIvorce. As states quickly adopted no-fault statutes
public perception shifted to the notion that the fault leading to th~
breakup of a marital relationship was no longer relevant for any
29
pu~pos: from ~ I:gal pe.rspective.
More recent changes in
le.gtslatlon and JUdlcl~1 opmlOns replacing references to alimony
With terms such as mamtenance or spousal support are a reflection
of •the 30shift from fault-based divorce and strict gender roles in
socIety.
As a result, justifications for awarding support have shifted, as
well. O.ne commentator has suggested that there are two divergent
th:oretlcal bases for awarding alimony upon a divorce, a victimonented approach based on fault and a partnership model'! based
o.n e~uality of the spouses." In the victim-oriented approach, one
VIew IS re~~esented by the idea that consideration of fault brings
ac.countabll;}Y ~nd compensation for hann caused by the
mlscondu.ct w~Ile the alternative view is that alimony's purpose is
not pUl1ltlve-whlch even states pennitting consideration of fault in
ali~ony determinations acknowledge, and that compensation or
pUl1lshment for victims is best left to tort law and criminal law
. Iy. 34
respective
B. Current Application ofMarital Misconduct
Marital misconduct continues to be a relevant factor in some
jurisdictions, however. In some states adultery serves as a complete
bar t o Support, 35 wh'I'
•
I e III 0 th ers 35.It IS
only one of several
28. Ira Mark Ellman, The Place of Fault in a Modern Divorce Law, 28 ARIz. ST.
LJ. 773, 776 (1996); ThE &\1ERICAN LAW INSTITUTE, PRINCIPLES OF THE LAW OF
FAMILY DISSOLUTION: ANALYSIS AND RECOMMENDATIONS 17 (Tentative Draft No.2
March 14, 1996).
'
29..
Barbar~ ~en.nett Woo~house,
with comments by Katharine T. Bartlett,
Sex, Lzes, and DZSSipatzon: The Dzscourse ofFault in a No-Fault Era 82 GEO LJ 2525
2525 (1994).
'
. "
,
30. Ellman, supm note 28, at 773.
20. 3 1. For a proposal advocating a partnership model, see Stanles, supra note
32. Mary E. O'Connell, Alimony After No-Fault: A Practice in Search of a Theory
23 NEW ENG. L. REv. 437, 498 (1988).
'
33. Swisher, supm note 23, at 302-03.
34. AMERICMT LAw INSTITUTE, supra note 28, at 28.
35. See, e.g., GA. CODE ANN. § 19-6-I(b) (West 1999) ("A party shall not be
entItled to alImony if It IS established by a preponderance of the evidence that the
2001]
SPOUSAL SUPPORT
867
considerations on which spousal support is based. In a slight
minority of states, twenty-three, marital fault is not considered in
alimony determinations. In the remaining states, as well as the
District of Columbia and Puerto Rico, such misconduct is deemed
relevant." The circumstances under which marital fault, as one of
38
the factors, may be considered are most often d efined b y statute.
However, even when fault may be considered in establishing
support obligations, a threshold issue that must be resolved is what
is meant by the tenn marital fault: it can include the conduct of
parties toward each other as well as "fault", however defined, as a
39
cause for the breakdown of the marriage. Determining fault can
be a very difficult task for trial courts if they are required to take it
into account in awarding alimony.4ll Fault has been referred to as
separation between the parties was caused by tllat party's adultery or desertion.");
N.C. GEN. STAT. § 50-16.3A (1999) ("If the court finds that the dependant spouse
participated in an act of illicit sexual behavior, as defined in G.S. 50~16.1A(3)a.,
during the marriage and prior to or on the date of separation, the court shall not
award alimony."); S.C. CODE ANN. § 20-3-130(a) (West 1998) ("No alimony may be
awarded a spouse who commits adultery" prior to tlle execution of a wntten
separation agreement or entry of a final decree.); VA. CODE ANN. § 20~107:1 (B)
(Michie 1995) (denying permanent maintenance if there are grounds for dIvorce
based upon adultery unless "the court determines from clear ~nd convin::ing
evidence that a denial of support and maintenance would constttute a manifest
injustice, based upon tlle respective degrees of fault dming the maniag~ and the
relative economic circumstances of the parties."); W.VA. CODE § 48-2-15 (1) (1999)
("nor shall an award of alimony ... be ordered which directs tlle pay~ent of
alimony to a party determined to be at fault when, as a grounds grantm~ the
divorce, such party is determined by the court: (l) To have commItted
adultery; ....").
36. E.g., FLA. STAT. ANN. § 61.08 (I) (West 1997) ("The court may consider
the adultery of either spouse and tlle circumstances tllereof in determining the
amount of alimony, if any, to be awarded."); 23 PA. CONS. STAT. ANN. § 3701 (h)
(14) (West 1991).
.
.
37. Elrod & Spector, supra note 18, at 908 chart 1. For a thor?ugh dISCUSSIon
and classification of existing state laws on the relevance of fault m the award of
alimony, see Ellman, sUjJra note 28, at 776-81 (1996); see also THE AMERICAN LAw
INSTITUTE, supra note 28, at 20-24.
. ..
38. For example, S.C. CODE ANN. § 20-3-130 (0) (10) (1998), 111 hst111g the
factors that must be considered and balanced in making an award of alimony or
separate maintenance refers to "maIi~1 miscon.duct or fault of eithe~ or both
parties, whether or not used as a baSIS for a dIvorce or separate mamtenance
decree if the misconduct affects or has affected the economic circumstances of the
parties or conuibuted to the breakup of the maniage ...."
39. ThE AMERICAN LAw INSTlTUTE,Supm note 28, at 30-31.
40. For example, in Bollenbach, tlle court stated: "[t]he assessment of fault in
tlle ordinary divorce action is most difficult and the dissolution of a maniage is
the result frequently of a sedes of circumstances so complicated.as to defy accurate
fault assessment." Bollenbach v. Bollenbach, 285 Minn. 418, 434, 175 N.W. 2d
868
WILLIAM MITCHELL LAW REVIEW
[Vo!. 28:2
2001]
"inherently contextual,,,4l indicative of the additional factual issues
that must be resolved when fault is a factor in determinations of
spousal maintenance.
M~reo~er, permitting the consideration of fault in alimony
determ:natlOns Illcr~ases the discretion of judges in making
det~r:nlllatIons l~ading t? outcomes less certain and provides
additIonal Illcentlve to raise misconduct issues, even unfounded
for postming in the negotiation process. 42 Some commentator~
~rgue :hat main~inin~ vestig~s of fault in adjUdicating economic
Issues III connectIon WIth a divorce are counter-productive to the
principal objectives of spousal support statutes." Others note that
marital fault often results in gender bias. 44
C. Minnesota's Approach
As early as 1877, the Minnesota Supreme CO~rt addressed the
p~oprie1:J.' of con~idering m~rir::1 misconduct in determining
alimony III Buerjenzng v. BUerjenzng where it was stated:
But, while the adultery of plaintiff is not necessarily a bar
to tl,e action in such cases, it is proper to be pleaded, as a
total or partial defence [sic], to the claim for alimony. An
a~ulterous woman can not [sic] stand, in regard to
alimony, the equal of one whose conduct is
irreproachable.
In determining the amount to be
a1low~d, 1i!,e good or bad conduct of the parties is always
matenaI.
Th.e a~propriate consideration to be accorded fault in alimony
determlllatlOns contInued to evolve in Minnesota courts
tllroughout the following years to the point where misconduct
became one of several factors that a trial court, in the exercise of its
discretion, was to consider in considering a request for alimony."
In Peterson v. Peterson,48 the Minnesota Supreme Court continued to
hold tl,at evidence of marital misconduct should be only one of
148,158 (1970).
41. Woodhouse, supra note 29, at 2539.
42. Ellman, supra note 28, at 808.Q9.
43. Donald C. Schiller, Fault Undercuts Equity, FAM. ADvoc., Fall 1987, at 10.
44. Jana B. Singer, Divorce Reform and Gender Justice 67 N.C. L. REv. 1103
1109-11 (1989).
"
45. 23 Minn. 563 (1877).
46. Iii at 564.
47. Borchertv. Borchert, 279 Minn. 16,20,154 N.W.2d 902,906 (1967).
48. 308 Minn. 365, 242 N.W.2d 103 (1976).
1
1
I
SPOUSAL SUPPORT
869
many factors considered by the tI-ial court in allocating property
and making awards of alimony in a no-fault divorce. Although
acknowledging the adoption of no-fault divorce legislation,
substituting the broad concept of irretrievable breakdown for
divorce based on fault grounds, designed to minimize the
bitterness associated with protracted divorce litigation, the court
nevertheless declared that such legislation was limitcd to tl,e
grounds for dissolution and did not extend to tl,e issues .of
property division and alimony, having failed to enact proposed bills
49
that would have removed fault fronyconsideration.
Although an assessment of when spousal support should be
granted as well as the duration and level of sup?ort to be awar?~d
can differ significantly from state to state, financial need and ability
50
to pay continue to be primary considerations. Minnesota follows
the general ,~tandard of considering need as an, impo.rtant
consideration" to be balanced against the other spouse s ability to
pay." Under modem divorce law, there ?as been consid.erable
criticism for tl,e lack of any unified basIs for tl,e grantIng of
alimony leading to a lack of predictability and consistency in
..
53
d eClSlons.
Most states,54 including Minnesota," set forth factors that must
be considered when making alimony determinations.
In
Minnesota, the balancing of those statutory factors" by the trial
49. ld at 107-08.
50. Linda D. Elrod & Robert G. Spector, A Review of the Year in Family Law:
Redefining Families, Reforming CustodyJurisdiction, and Refining Support Issues, 34 FAM.
L.Q. 607, 617 (2001).
.
51. Minnesota Statutes section 518.552(1) (1990) permIts a court to grant
maintenance upon a finding that the spouse either "(a) lacks s~cient properLy,
including martial property app~rtioned to the sp;ouse, to proVIde for reasona~l~
needs of the spouse... or (b) IS unable to prOVIde adequate self-support, aftel
considering the standard ofliving establishes! during the ma~riage .. .."
52. Erlandson v. Erlandson, 318 N.W.2d 36, 39-40 (Mmn. 1982); Jensen v.
Jensen, 409 N.W.2d 60, 61 (Minn, 1987).
53. AMElUCAN LAw INSTITUTE, supra note 28, at 7; CLARK, JR., s'/{pra note 26,.at
441 ("If we· do not,know what we are trying to accon:Plish by giving the ~fe
alimony, we will not easily be able to decide whether It should be granted m a
particular case, or; if so, in what amou~t .. ..").
,"
54. Forty states have a statutory lIst of factors for grantmg alImony/spousal
support. Elrod & Spector, supra note 18, at 908 chart 1. .
. .
55. Minnesota's statute, MINN. STAT. § 518.552 (1990) IS modeled Sigmficantly
on § 308 of tlle Uniform Maniage and Divorce Act, 9A U .L.A 147 (1973).
.
56. Minnesota lists the following factors to be consIdered m awardmg
maintenance:
(a) the financial resources of the party seeking maintenance, including
~70
WILLIAM MITCHELL LAW REVIEW
[Vol. 28:2
200l]
court allows for considerable discretion in their applicatio " I
f~c~ the s:andard of review from the district court's determ~~atio~
o'd ed.malllten~['ce award is whether the district Court abused its
WI e IscretIOn.
III. CONCLUSION
marital pro~erty apportioned to the party, and the party's abilit to
~eet needs mdep~nd~~tly, including the extent to which a 'provi~on
or supp~rt of a chIld hvmg with the party includes a sum for that
pa
I
rty
I
(b) ~:le time necessary to acquire sufficient education or training to
ena e the party seeking maintenance to find appro nate
empl0YJ:1ent, and ~he probability, given the party's age and skihs f
comple~ng educatIOn or training and becoming fully or partially ~e~
supportmg;
-
I
(c) the standard ofliving established during the marriage;
l( d) t~e duration of the marriage and, in the case of a homemaker the
engt 1. of ab~ence from employment and the extent to which' an
educ<t:tron, skills, or experience have become outmoded and earnin y
capaCIty has become permanently diminished;
g
(e) :he loss of earnings, seniority, retirement benefits and other
emp oyment opportunities forgone by the spouse seeking spousal
mamtenance;
(f) t!le age; and the physical and emotional condition of the
spouse
seeking mamtenance;
(g) tlle a~ility or ~le spouse from whom maintenance is sought to meet
needs whIle meeting those of the spollse seeking maintenance; and
(h) th~ ~ontribution of each party in tlle acquisition preservation
depreclauon, or appreciation in the amount or value 'of the rna 'tai
~operty, as well as the contribution of a spouse as a homemaker o~ in
rtherance of the other party's employment or business.
MINN. STAT. ANN. § 518.552(2) (West 1990).
57. Susanne C Sedgwick & Chid K T I d D"/
.
0' Appeals' ARe' . 9 '[.J • • r y e sta ,l'amz:y Law m the Minnesota Court
"
.
mew, ,~~LINllL. REv. 387, 392 (1986)
58. Erlandson v. Erlandson, 318 N.W.2d 36, 38 (l"iinn 1982)
.
.
59. MINN. STAT. ANN. § 518.552(2) (West 1990).
awa~~ O::~i:t~~~;:e8~,;'.W.2~ 797, 800 (Minn. CI: App. 1986)
agail:st
(holding thai an
c?nside~n¥ ~arital ~i:~o:~a:t ~~~~~~ d~~s~~~P~~l~::t~Zl~~~~~;~C:
~onst~en~g a V\llfe s lllcreased financial needs resulting from chronic health issues
Ies~ltJngwrom abuse perpetrated by tile husband during the maniage)
.
oodhouse, supra note 29, at 2525-26.
.
871
increased future living costs or reduced earning capacity.
Nevertheless, the Minnesota legislature has taken a step in the right
direction.
. A!thoug~ ~innesota law now requires that spousal su ort be
adjudicated WIthout regard to marital misconduct,,59 ~p I
misc.onduct may nevertheless be taken into account' indi:~c~ °6~
AdditIOnally, acts of malital misconduct may be considel~d
relevant. when they result in economic waSte, loss of financial
expectatIOns or other serious economic injury6! resulting III
as custodIan;
SPOUSAL SUPPORT
I
I
j
~
Minnesota has wisely removed fault from consideration in
deciding issues of maintenance in divorce proceedings. This is
consistent with those who have argued that decisions related to
support and maintenance, like the granting of the divorce itself,
should not be based on a moral standard that considers
misconduct of the parties but rather on the ideals of economic
fairness, premised on need and ability to pay.62 Those states that
continue to allow considerations of fault to influence such
determinations or those who seek to reintroduce fault will
necessarily increase the bitterness associated with divorce, lead to
more unpredictable results and promote protracted and costly
litigation, increasing the emotional toll on families and their
children.
Minnesota's decision to exclude consideration of fault in the
award of maintenance is consistent with the position of the
Uniform Marriage and Divorce Act and nearly half of the states.
This is not to suggest that there is no room for additional
clarification and refinement of the principles underlying a theory
of spousal maintenance following divorce. In fact, the ongoing
debate within the legislative, judicial and academic communities of
the proper role malital fault should have in resolving economic
issues incident to divorce can hopefully provide the necessary
incentive to arrive at a consensus on basic plinciples to guide
decision-making that will provide additional consistency and
reliability.
The American Law Institute'~ Principles of the Law of Family
Dissolution (Principles)," which advocates a total abolition of all
fault-based factors in marital dissolution, provides a framework for
further discussion and consideration as states continue to consider
reform in the area of family law. To provide a unifying theory
underlying what had previously been referred to as alimony, the
Principles substitute the concept of compensatory spousal
62,
63.
Schiller, supm note 43, at 42.
LAw INSTITUTE, supra nole 28.
AMERICAN
872
WILLIAM MITCHELL LAW REVIEW
[Vol. 28:2
payments"' resulting from an unfair distribution of financial loss
from the failure of the marriage as opposed to the concept of
financial need." Minnesota, as well as other States, may wish to
consider these Principles as they search for ways to improve the
approach to achieving economic fairness and justice to parties
upon dissolution.
64.
65.
Id. at ell. 5.
Id.atlO.